Davis v. Campbell

• Decision Date: 29 January 1979
• Docket Number: No. PB-C-77-19.,PB-C-77-19.
• Citation: 465 F. Supp. 1309
• Parties: Allan Frank DAVIS, Petitioner, v. Jerry CAMPBELL, Superintendent, Cummins Unit, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

465 F. Supp. 1309

Allan Frank DAVIS, Petitioner, v. Jerry CAMPBELL, Superintendent, Cummins Unit, Arkansas Department of Correction, Respondent.

No. PB-C-77-19.

United States District Court, E. D. Arkansas, Pine Bluff Division.

January 29, 1979.

COPYRIGHT MATERIAL OMITTED

Charles S. Gibson, Dermott, Ark., Raymond R. Roberts, Little Rock, Ark., for petitioner.

Joe Purvis, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

ROY, District Judge.

The petitioner, Allan Frank Davis, is currently confined at the Cummins Unit of the Arkansas Department of Correction pursuant to the judgment and sentence of the Circuit Court of Garland County, Arkansas. On June 14, 1968, following a jury trial, the petitioner was convicted of first degree murder in the January 19, 1967 shooting death of his estranged wife, Sharon Davis. The petitioner subsequently appealed his conviction to the Arkansas Supreme Court alleging several errors in the trial as grounds for reversal. The petitioner's conviction was affirmed by the Arkansas Supreme Court in the reported decision of Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969). While the jury recommended imposition of a sentence of death by electrocution, the petitioner's initial sentence was ultimately commuted to a term of life imprisonment. Consequently, the petitioner has been in continual state custody from the date of his state court conviction until the present. In this proceeding, which is based upon the provisions of 28 U.S.C. Sec. 2254, the petitioner seeks the issuance of a writ of habeas corpus as a result of claimed constitutional deficiencies in his state court trial. On June 15, 1978 this Court conducted an evidentiary hearing in order to allow the petitioner an opportunity to present any and all evidence relevant to the contentions raised in his application for federal habeas relief. Since the testimony and exhibits presented on behalf of the petitioner dealt exclusively with the issue of whether the petitioner should be admitted to bail pending disposition of this cause, the Court's review of the relevant evidence will necessarily be limited to an assessment of the facts disclosed by the transcript of petitioner's state court trial.

The petitioner has raised three arguments in support of his claim for relief. The petitioner's contentions are as follows and will be addressed by the Court in their numerical sequence:

I. PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE STATE'S FAILURE TO ADVISE HIM OF HIS CONSTITUTIONAL RIGHTS AS PRESCRIBED BY THE MIRANDA RULE AND AS SET FORTH IN THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

II. PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE TRIAL COURT'S ALLOWANCE OF THE PETITIONER'S ABSENCE DURING CERTAIN STAGES OF THE TRIAL.

III. PETITIONER WAS DENIED DUE PROCESS OF LAW BY THE TRIAL COURT'S FAILURE TO CONDUCT A PRE-TRIAL COMPETENCY HEARING TO DETERMINE PETITIONER'S MENTAL COMPETENCY TO PROCEED TO TRIAL.

I.

The petitioner's first contention actually has two separate and distinct parts which have been interwoven. The first part alleges a violation of the petitioner's Fifth Amendment privilege against self incrimination, and the second part asserts an alleged denial of the petitioner's Sixth Amendment right to the effective assistance of counsel. While these arguments are closely related to petitioner's overall claim of a denial of due process, the Court will address each subsidiary claim separately to avoid confusion.

The Fifth Amendment claim is premised upon a pretrial psychiatric examination of the petitioner which was conducted pursuant to a court order obtained by the State. Petitioner argues, and the state court record reflects, that the psychiatric examination was conducted without notice to petitioner's counsel and without the presence of petitioner's counsel. Petitioner further argues that he should have been advised or warned of the rights prescribed by the United States Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before answering any questions asked by Dr. Yohe, the State's primary expert psychiatric witness. Petitioner takes his Fifth Amendment claim still further by asserting that the state trial court violated his Fifth Amendment privilege against self incrimination by ordering the state hospital to turn over all medical records concerning petitioner's psychiatric status to the prosecution.

An examination of the petitioner's Fifth Amendment claim reveals the existence of no constitutional violation. As the Miranda decision indicates, an accused person must be warned of their rights against self incrimination only within the context of a custodial interrogation. Thus, the scope of Miranda is limited to those situations where law enforcement agencies seek to elicit inculpatory statements from an accused or suspected offender who is in custody at the time of questioning. In the present case, petitioner was examined by the State's psychiatrist following the entry of a plea of not guilty by reason of insanity. There is no dispute that petitioner was not given Miranda warnings prior to the examination. The only question now remaining is a question of law, whether Miranda warnings must be given prior to the prosecution's pretrial psychiatric examination of the accused, or alternatively stated, whether a pretrial psychiatric examination of an accused which is conducted by the State's psychiatrist constitutes "custodial interrogation" within the meaning of Miranda v. Arizona, supra.

While there is not an abundance of precedents, those courts which have faced the specific issue now before the court have held that Miranda warnings are not required before a state psychiatrist examines a defendant. United States v. Greene, 497 F.2d 1068, 1081 (7th Cir. 1974); United States v. Bohle, 445 F.2d 54, 66 (7th Cir. 1971); United States ex rel. Stukes v. Shovlin, 329 F.Supp. 911 (E.D.Pa.1971), aff'd 464 F.2d 1211 (3d Cir. 1972). Recognition of the purpose of a psychiatric examination, as opposed to that of custodial interrogation, provides the underlying rationale in each of these decisions. The fact that pretrial psychiatric examinations have a different aim or purpose from that of a custodial interrogation was cogently observed by the court in United States ex rel. Stukes v. Shovlin, supra, at p. 914:

We cannot, however, adopt the view that a psychiatric evaluation is equivalent to custodial interrogation since clearly their purposes are distinct and have different aims. A psychiatric evaluation is not conducted by the police with a view to eliciting inculpatory statements, but rather to objectively ascertain a defendant's legal competency to stand trial.

This Court agrees with the Shovlin court's analysis of the Fifth Amendment issue and, accordingly, finds that petitioner suffered no constitutional deprivation from the failure of the State's psychiatrist to advise petitioner of his Miranda warnings prior to examination. It should be noted that the petitioner has failed to demonstrate any resulting prejudice even if such warnings were constitutionally mandated. The transcript of petitioner's state trial reflects, and petitioner concedes, that Dr. Yohe, the State's primary expert psychiatric witness, was prohibited from testifying as to the contents of any statement made by petitioner to him during the examination.

The second part of petitioner's alleged denial of due process stems from the absence of petitioner's counsel during the examination conducted by the State's psychiatrist. As has been previously observed, petitioner's counsel was never notified that the examination was to take place nor was he present when the examination was actually performed. Petitioner contends that these uncontroverted facts establish a denial of his Sixth Amendment right to the effective assistance of counsel. Although the respondent acknowledges that it would be better to notify defense counsel of an examination of the type performed in this case, respondent denies that petitioner was constitutionally entitled to the presence of his attorney at the examination. The matter in controversy thus resolves itself into whether an accused has the right to have counsel present during a pretrial mental examination, or more narrowly framed, whether a pretrial psychiatric examination constitutes a "critical stage" of the prosecution.

It is now well established that the Sixth Amendment right to the effective assistance of counsel attaches at all "critical stages" of a criminal prosecution. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). It is also established that "critical stages of a prosecution" are those stages which take place after judicial proceedings have been initiated against the accused. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). In the present case, petitioner cites the case of Schantz v. Eyman, 418 F.2d 11 (9th Cir. 1969) in support of his contention that an accused is entitled to the presence of counsel during a pretrial mental examination. In Schantz, supra, the defendant's attorney refused to allow the defendant to be psychiatrically examined by the State prior to trial. The prosecution then petitioned and obtained a court order directing the defendant to submit to examination by the State. On the day of the scheduled examination, the prosecution withdrew its request for the examination and thereafter, without notice to the defendant's counsel, sent a psychiatrist to the defendant's residence to question the defendant. Upon arrival at the defendant's residence, the psychiatrist disclosed his affiliation with the county attorney's office and proceeded to ask the defendant questions. The defendant refused to answer any questions and the State's psychiatrist left. The prosecution later argued in the defendant's trial that the defendant's failure to cooperate with the State's...